Corporate Personhood: Why It’s a Good Thing

Citizens United was a bad decision, but the cry of “Corporations are not people!” isn’t helping fix the problem — in fact, it’s making it worse.

| Summer 2015

  • Corporate personhood is thus not only a mechanism for the creation of wealth (by encouraging investment), it is also a mechanism for enforcing accountability (by providing a deep pocket to sue).
    Photo by Flickr/Takoma Bibelot

The American left is notoriously fractious. But one belief that unites more than most is this: Corporations are not people. “Corporations are people, my friend,” said Mitt Romney in 2011, and Democrats skewered his cluelessness. “I don’t care how many ways you try to explain it,” Barack Obama said on the stump. “Corporations aren’t people. People are people.” During the 2014 midterms, Massachusetts Democratic Senator Elizabeth Warren barnstormed the country to rally the faithful. Her most dependable applause line? “Corporations are not people!”

The main target of the corporations-are-not-people crowd is the Supreme Court’s 2010 Citizens United ruling striking down limits on independent corporate spending in elections. After that case, groups sprang up to fight corporate personhood. Others rebranded themselves by newly taking aim at it. But they do not limit themselves to attacking the Court’s campaign finance jurisprudence. Most groups make a broader attack on corporations being able to assert any First Amendment speech rights at all; and some have called for disabusing all corporations or businesses of any constitutional right.

Common Cause, for example, uses Robert Reich to tout its support for “a constitutional amendment declaring that ‘Only People are People’ and that only people should have free speech rights protected by the Constitution.” Public Citizen, the liberal litigation group founded by Ralph Nader, argues that “rights protected by the Constitution were intended for natural people.” Free Speech for People, one of the groups most influential in the anti-personhood movement, is pushing a “People’s Rights Amendment.” A version has already been sponsored in the U.S. Senate by Jon Tester of Montana and in the House by Jim McGovern of Massachusetts. It would declare that “the rights protected by this Constitution” are “the rights of natural persons.” A range of liberal groups have signed on to the anti-personhood project—MoveOn, Sierra Club and NAACP chapters, and steelworker and SEIU locals. By their count, 16 states and nearly 600 localities have endorsed some kind of anti-personhood amendment. Even in a moment when the progressive left seems otherwise to be fighting rearguard actions, this movement has genuine energy.

These are my people. Many of the leaders of this movement are friends and respected colleagues. I contributed to Elizabeth Warren’s senatorial campaign and voted for Reich when he ran for governor of Massachusetts. Forty years ago, my coal miner grandfather sat me down and told me how a union had saved his life. As a law professor, I have spent my career as an oddity—a progressive who teaches corporate law, almost always the most liberal person in any room of business law academics. A decade ago, I came up with a novel legal theory that shareholder activists recently put to good use suing the Hershey Company over the use of child labor in West African chocolate cultivation.

A corporate lickspittle I’m not.

But the attack on corporate personhood is a mistake. And it may, ironically, be playing into the hands of the financial and managerial elite.

12/29/2017 9:53:03 AM

Excellent points; however the critical comment towards the President is opinionated and not true.

7/1/2015 9:49:41 PM

Too complex for the above simplistic argument: History shows stock holders may not have much sway in decisions, workers sometimes less. Also at times individuals making decisions are the criminals. If people are people someone in a corporation can be better held accountable. People means people, not a separate organization, which can try to be above the law, in which at times most of those connected to that organization are held slave to the whims of their employer or provider of goods and services. The argument that corporations have the rights of people seems to me, if before 1861 a slave owning plantation had guaranteed rights over those on the plantation. Also see the link. Corporation need to be subject to the common good and individual rights- not the other way around. Corporations are not people. In my link I will add that if corporations are people in reality GM would have been sold piece by piece to its competitors (corporation punishment for first degree murder) and all its German investments taken to pay for war crimes. As that form of punishment very often seems not to be case and perhaps unfair to the uninformed worker, all people in making homicidal decisions needed to go on trial (in the case of GM after WWII in Nuremberg). In short, people need always be held responsible, and not hide behind corporate phony personhood when making criminal decisions.

7/1/2015 11:48:47 AM

Direct link to the Washington Monthly article, with extensive though not very illuminating comments:

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